Alonzo, Francisco Alvarenga v. State

Opinion issued July 18, 2002 In The Court of Appeals For The First District of Texas NO. 01-01-00847-CR ____________ FRANCISCO ALVARENGA ALONZO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 791,770 O P I N I O N Appellant, Francisco Alvarenga Alonzo, pleaded guilty, without an agreed recommendation of punishment from the State, to the second degree felony offense of aggravated assault. The trial court accepted the guilty plea, deferred an adjudication of guilt, and placed appellant on community supervision for five years. The State subsequently filed a motion to adjudicate guilt, to which appellant pleaded not true. After finding the allegations in the State's motion to adjudicate true, the trial court adjudicated appellant's guilt and assessed punishment at 15 years confinement. Compulsory Process In points of error one and two, appellant asserts the trial court erred in "proceeding to judgment and sentence after accepting appellant's plea of guilty" because article 1.15 of the Code of Criminal Procedure (1) does not permit a criminal defendant to call witnesses in a hearing on a plea of guilty, thus violating his federal and state constitutional rights to compulsory process. (2) In points of error three and four, appellant asserts the trial court erred in entering a judgment of guilt because he was not informed of, and did not knowingly or voluntarily waive, his federal and state rights to compulsory process. Appellant may not now raise on appeal issues relating to his original deferred adjudication proceeding. A defendant placed on deferred adjudication may raise issues relating to the original plea proceeding only in appeals taken when deferred adjudication community supervision is first imposed. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999); Marshall v. State, 995 S.W.2d 880, 881 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd). Thus, we lack jurisdiction over appellant's first, second, third and fourth points of error. Cruel and Unusual Punishment In his fifth and sixth points of error, appellant contends his 15-year sentence constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution (3) and Article I, section 13 of the Texas Constitution (4) because it is not proportionate to the offense committed. (5) To preserve a complaint for appellate review, a party must present a timely complaint to the trial court, state the specific grounds for the desired ruling if the specific grounds are not otherwise apparent, and obtain a ruling. Tex. R. App. P. 33.1(a). Like other rights, a constitutional right may be waived or forfeited by the failure to make a timely assertion of that right. Solis v. State, 945 S.W.2d 300, 301 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). Appellant failed to lodge any objection to the trial court's assessment of punishment. Moreover, appellant failed to present any evidence regarding punishments assessed for similar offenses in this and other jurisdictions. Because a threshold proportionality analysis requires a comparison of the gravity of the crime with the severity of the sentence, it is necessary to have a sufficient record by which to evaluate the relative aggravation or mitigation of the particular facts of the case. Diaz-Galvan v. State, 942 S.W.2d 185, 186 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). Without a pre-sentence investigation report or a statement of facts from the guilt or punishment hearing, we have an insufficient record to perform a proportionality review. Id. We hold that appellant has not preserved his fifth and sixth points of error for our review. We overrule appellant's fifth and sixth points of error. Conclusion We affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Justices Jennings, Radack, and Duggan. (6) Do not publish. Tex. R. App. P. 47. 1. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2002). 2. U.S. Const. amends. VI and XIV; Tex. Const. art. I, §§ 10, 29. 3. U.S. Const. amends. VIII and XIV. 4. Tex. Const. art. I, § 13. 5. Appellant's 15-year sentence was below the maximum available sentence of 20 years. See Tex. Penal Code Ann. §§ 12.33, 22.02 (Vernon 1994). Punishment that falls within the range authorized by statute is generally not "cruel and unusual" and is not excessive. Wright v. State, 930 S.W.2d 131, 134 (Tex. App.--Dallas 1996, no pet.). 6. The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.